February 6, 2008

I'll analyze the language later this evening, but I thought you'd enjoy chewing over it.

ADDED: As I expected, these statements are pretty much the same, but there are some subtle differences. McCain goes first, so I'll list the 4 basic things he does, and then we can see how the others deviate from the McCain model:

1. Assert a strong belief that judges should only interpret the law as written and not usurp the role of the legislature by declaring that the law is what they want it to be.

2. Imply that you nevertheless expect them to reach outcomes that you like by pointing to the outcomes you expect the judge to reach.

3. Refer to separation of powers and federalism.

4. Invoke the name "John Roberts" and one other Justice who represent the judicial ideal.

Romney omits #2 (the most dubious point), but lest conservatives think he's not going to give them what they want, on #4, he invokes John Roberts and adds not just Samuel Alito (McCain's other Justice) but also Antonin Scalia and Clarence Thomas.

In response to above query: I venture a guess that many would name Justice Taney.

Which makes me wonder, after reading the positions of the Republican candidates on Supreme Court Justices, how many of them would see Taney as an originalist, and how many would see him as a judicial activist.

Also, is Huckabee's position on judges a not so subtle attack on Marbury v. Madison and all judicial review?

Lastly, I was amused by the manner in which nearly every candidate assumed that controversies surrounding textual interpretation are a recent phenomenon.

Reprise from a prior post:There has long been a dispute as to who is the stupidest Supreme Court Justice. Joseph Philo Bradley was called the moron justice behind his back and Thurgood Marshal was not noted for his scholarship. Chief Justice Warren Burger was considered a some what dim bulb and no one could tell if Frank Murphy was drunk all the time or just really stupid. Chief Justice James Clark McReynolds is undisputably the most unpleasant person to ever serve on the Supreme Court and was considered an intellectual lightweight. His lack of intelligence led to FDR’s effort to pack the Court. But the consensus opinion of most legal scholars is that Tom C. Clark was the dumbest jurist in the history of the Supreme Court. Harry Truman often said that his one regret was not frying millions of Orientals but rather his appointment of this cretin to the court. Luckily, his family was independently wealthy as his grandfather had invented the candy bar that bore his name.

Sorry, Trooper, but the Clark candy bar was inventred by Irish immigrant to Pennsylvania David L. Clark in 1911. Tom C. Clark was born in Dallas in 1899. LBJ forced the intellectually unrespected Justice Clark to resign when he appointed his son, the equally unrespected (at least in my circles)Ramsey Clark as Attorney General. Like father, like son? At least, a failure of the genetic theory of "reversion to the mean."

Dude, I was quoting dear old Harry from his oral history project with Merle Miller. He did kind of laugh about it. I cleaned it up. A lot. But don’t let the facts get in your way. Fire away. Your righteous indignation is quite amusing.

Although the Clark family is justly famous for the introduction of the Clark bar, it pales in comparison to the chocolate splendor of the Hershey Bar. The inventor of the Hershey Bar, Milton Snavely Hershey first started his confectionary career in 1876 and continued to experiment with tasty treats until he created the one and only Hershey Bar in 1900. The delectable taste treat went on to dominate the candy world to this very day and led to the establishment of the Hershey empire in Hershey Pennsylvania. But as with most families, Milton was the only really successful and innovative force. Most of his descendentsd were virtual nonentities except for his grandson Titus Hershey who as we all know discovered the Hershey Highway and popularized it by his posts on the internet

Are you kidding? It's fricking hilarious for the Trooper to imply that Harry Truman enjoyed drinking the blood of slant-eyed babies.

Great Mother of Allah can you not read? Trooper clearly and plainly said Truman regretted frying the Orientals not drinking their blood. I'm not certain of Harry's ethnicity but I don't think he's Transylvanian.

In any event, Truman's regret was that he over-fried them. Harry was not a fan of blackened Oriental ever since a bad meal during Mardi Gras in New Orleans. See the A-Bomb over cooks whereas FDR has the right method with conventional fire bombing which made a better meal with cole slaw and pickles.

"[Some of my opponents] do not want to change the Constitution, but I believe it's a lot easier to change the constitution than it would be to change the word of the living God, and that's what we need to do is to amend the Constitution so it's in God's standards rather than try to change God's standards,"

Re: just visiting:

Which makes me wonder, after reading the positions of the Republican candidates on Supreme Court Justices, how many of them would see Taney as an originalist, and how many would see him as a judicial activist.

A lot would see him as activist, I think. The analogy between Dredd Scott v. Sandford and Roe v. Wade is commonplace in conservative legal commentary.

Then there was a descendent, Amelia Hershey who married Arnold Amana. After viewing the films of the devastation of Hiroshima and Nagasaki and reading the accounts he developed the Amana Radar Range. It cooked better with less damage.

1. Protect the basic freedoms and rights of all, and not allow the tyranny of the majority to limit either the explicit Constitutional rights nor the unalienable rights to life, liberty and pursuit of happiness of any citizen or resident falling under the laws of the nation (keep in mind-- since I anticipate someone nitpicking it, that a fetus does not qualify for citizenship nor residency until birth.)

2. Given the natural accruel and expansion of powers towards those who already have power (in particular, Government), take care to make sure that the rights of the citizenry and individuals are protected from abuses by the state,

3. Given that some technologies, possible crimes and philosophies have been developed since the time of the Founding Fathers, and that the basic philosophy of society is continually evolving, be open to re-interpreting and updating what may have been written in the past in the framework of present realities that may not have been envisioned when opinions were first written, so long as such opinion does not conflict with the Constitution.

4. Examples of the judicial ideal: William O. Douglas, Earl Warren, William Brennan, Thurgood Marshall (sorry, T.Y., but I think much more of the scholarship of Marshall than I do of his successor) and John Paul Stevens.

the unalienable rights to life, liberty and pursuit of happiness of any citizen or resident falling under the laws of the nation (keep in mind-- since I anticipate someone nitpicking it, that a fetus does not qualify for citizenship nor residency until birth.)

Well, I wouldn't nitpick if you didn't put up a flag like that. The obvious objection to your too-cute-by-half "citizen or resident" locution is that the Constitution actually talks about citizens and persons (14th amendment).

just visiting said..."In response to above query: I venture a guess that many would name Justice Taney. Which makes me wonder, after reading the positions of the Republican candidates on Supreme Court Justices, how many of them would see Taney as an originalist, and how many would see him as a judicial activist."

Well, Taney's great sin was Dred Scott, which was the taproot of the doctrine of substantive dur process. So I'd say that in the case for which he's condemned, he acted as a judicial activist. That case was anything but an originalist analysis, but I couldn't speak to the rest of his record.

Eli, that's a cogent list. It reminds me of a line from Whitman: "the lord advances and yet advances, always the shadow in front."

Consider a counter example to Brennan, etc.

Given the natural accruel and expansion of powers towards those who already have power (in particular, Government), take care to make sure that the rights of the citizenry and individuals are protected from abuses by the state.

The obstructionist justices faced by FDR can surely be held up as an example of this principle.

I imagine that the argument against this idea is that FDR was not stealing power from citizens, but from the states. Abuses of his policies could only be projected since he was claiming power for the state that hadn't yet been exercised.

Thus my quote from Whitman. It is enigmatic, don't you think, to expect justices to keep up with technology, but draw a hard line -- to use your example -- against ever regarding a potential human with a functioning brain as a person.

I'm not claiming this as my view (it's not); I'm just pointing out that a Supreme Court that advances, and yet advances, operates in the shadows.

I find #1, with the use of "interpret" the constition troubling. As a nonlawyer, I would have the expectation that the justices would interpret the legislation as presented and then compare that to what the constitution actually says. You can "interpret" the constitution any way you want. The bible was "interpreted" to support slavery recently, and church executions by torture in the middle ages. If there is anything ambiguous in the constitution there is by now long standing precedent as to the meaning, not to mention the writings of the framers on these subjects.

This is why after eight consecutive republican votes for president, I will become a "suicide voter" if McCain is opposed by Hillary. I'm not enough of a true believer to vote for Obama since he is way left, although I do like him.

Whizzer White got his nickname because he liked to pee on the back of William O Douglas's chair. He was so old he would think he wet himself.

While cute, I believe that the real story was that he got the name while playing football as a running back, first at the University of Colorado, and then as a pro for Pittsburgh and then Detroit. Apparently, he led the league in rushing yards in 1938 and 1940. But then, he joined the Navy for WWII (where he met JFK), went to Yale LS, and Oxford as a Rhodes scholar.

Thurgood Marshall got his nickname of "Huggy Bear" for three basic reasons. There were the years he spent out on the street as an informant for two white hippie cops in a Ford Torino. His love of sugar crisp cereal. And of course his habit of grabbing and hugging the secretarial staff to within an inch of their lives. Although he loved to hug them and stroke their backs and rub onto them in a most injudicious manner, he never got in trouble because sexual harassment had not yet been invented. That would be left to another black pioneer.

Elliott A said..."I find #1, with the use of "interpret" the constition troubling. As a nonlawyer, I would have the expectation that the justices would interpret the legislation as presented and then compare that to what the constitution actually says."

Not every case involves a constitutional challenge. In most cases, you're trying to iron out either a seeming ambiguity in one given clause or between two clauses that seem to be in tension. In any event, courts have often gotten quite creative about reconstructing statutes when they've had strong incentive to do so. There's a vast corpus written about the ways you can do violence to statutes. But from the textualist's perspective, must of this isn't useful. Law "designate[s] by rules certain types of behavior as standards for the guidance either of members of society as a whole or of special classes within it," and these rules having been promulgated, those subject to it "are expected without the aid or intervention of officials to understand the rules and to see that the rules apply to them and to conform to them." H.L.A. Hart, The Concept of Law 38 (1961). The rule of law requires that "government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge." Hayek, The Road to Serfdom 80 (1994). Thus, "law ought to be knowable; secret laws are inherently tyrannical" because they demand compliance with a rule that a reasonable person can must be able to know in advance of an act (this is also why exhortations for judges to do justice rather than uphold the law fail: "if the law is whatever the judge in a given case thinks is a just result in that case, no one can know in advance what the law is and take reasonable steps to conform their behavior to it," and then we're back to secret laws). Thus, "[t]he task of the textualist judge is to ascertain how the text would be understood by a reasonable person contemporaneously with its enactment, and when the text is gaudy, fraught, or even internally contradictory, what conclusion would that reasonable person draw from the text, in light of the apparent purpose of the statute placed alongside the balance of the corpus juris, as to how they should behave in order to comply with the statute?" Dodd, when Two Wrongs Do Make a Right: the Strange Case of Burke v. Bennett at 16 (available at SSRN) (2008) (footnote omitted).

"You can "interpret" the constitution any way you want."

Perhaps as a matter of raw judicial power, yes, but not legitimately, and not in the principled fashion required by the vesting of judicial power in the federal courts.

"If there is anything ambiguous in the constitution there is by now long standing precedent as to the meaning, not to mention the writings of the framers on these subjects."

Harry Blackmun was a quiet and unassuming man who caused the greatest controversy in the Courts history since the civil war with his opinion in Roe v Wade. This case has been the flashpoint for heated disputes both within and without the court and is the basis for most of the acrimony in the confirmation of new justices to the court. This situation angered some of the justices and they never forgave poor old Harry. To his dying day, Whizzer White would only call Justice Blackmun by his nickname, fetus face.

Roosevelt was every bit as bad for civil rights as any other President of the past century. So yes, those 'obstructionist' justices had a case.

I wrote a post the other day http://tiodt.blogspot.com/2008/02/return-to-bad-old-hoover-days.html in which I suggested that virtually every single President since Coolidge (though in fact it is since Roosevelt-- Theodore) had greatly expanded government's powers of intrusion on privacy. The lone exception is Jimmy Carter, who was run out of Washington after one term.

Roosevelt was every bit as bad for civil rights as any other President of the past century. So yes, those 'obstructionist' justices had a case.

I wrote a post the other day http://tiodt.blogspot.com/2008/02/return-to-bad-old-hoover-days.html in which I suggested that virtually every single President since Coolidge (though in fact it is since Roosevelt-- Theodore) had greatly expanded government's powers of intrusion on privacy. The lone exception is Jimmy Carter, who was run out of Washington after one term.

"Greater than Dred Scott, I'd say. Dred Scott was cauterized by the Civil War amendments, paid for in blood; Roe remains an open wound to this day."

Dred Scott led to the continued subjection of an entire race of people and a massive Civil War in which hundreds of thousands of Americans died. Roe v. Wade has led to some political nastiness, grist for the mill for legal-academic debates and occasional acts of terrorism. I don't think one can seriously argue that Roe v. Wade is a bigger deal than Dred Scott in its effects.

Somefeller:"I don't think one can seriously argue that Roe v. Wade is a bigger deal than Dred Scott in its effects."

Of course one can. Roe was decided thirty five years ago and remains a bitterly divisive issue in American politics on which every Presidential election and supreme court nomination turn. It remains the single biggest issue in American politics, period, for both sides. Dred Scott was decided in 1856; by 1891, 35 years later, it was a dead letter. It was irrelevant. Yes, Roe is now a bigger deal than Dred Scott was then - and that's without even getting into the respective death tolls of the civil war (<1m) vs. Roe (c.50m).

Of course one can. Roe was decided thirty five years ago and remains a bitterly divisive issue in American politics on which every Presidential election and supreme court nomination turn

Roe is divisive from the standpoint of the effects you described; presidential elections, SC nominations and yes its been going on for 35 years and likely to continue. I think somefeller's point is that Roe has not resulted in a civil war in which 700,000 Americans killed each other over. So in terms of 'effect', Roe after 35 years spurs heated debates but it hasn't resulted in half the country taking up arms to establish pro-choice/pro-life states.

Hoosier Daddy said..."I think somefeller's point is that Roe has not resulted in a civil war in which 700,000 Americans killed each other over."

Well, it's resulted in a 35 year slaughter in which an unknown number of Americans have killed circa fifty million of our posterity. Of course it's not a civil war - the victims are in no position to fight back.

Hoosier Daddy states the point correctly regarding the extent of the effects of both cases.

Furthermore, while obviously the abortion issue is an important one (it certainly is a top-level one for me), it is very debatable whether it is the single biggest issue in American politics. The "single biggest issue" is by definition the deciding, dealbreaker issue for the biggest portion of the voting public, and that changes from election to election, based on current circumstances. In terms of Presidential elections, with rare exceptions, the abortion issue seems to only add onto the margin of victory for one side or another by bringing in its partisans into the winning coalition, without it being the deciding, dealbreaker issue.

Well, it's resulted in a 35 year slaughter in which an unknown number of Americans have killed circa fifty million of our posterity. Of course it's not a civil war - the victims are in no position to fight back.

Simon, I don't necessarily disagree. I'm just pointing out the tangible realities of the effects of Dred Scott over Roe. The Civil War affected everyone. There was hardly a person in the nation who was not directly affected by the war in terms of losing a relative, house, bodypart or property as a result. Not to sound completely heartless and crass, but abortion has no effect on my life whatsoever. I will never have one (biologically impossible) and can honestly say no one in my immediate family has ever had one or contemplated having one. So in terms of me myself and I, abortion is really a non-issue. Do I think its wrong? Absolutely but I simply don't have a dog in the fight. I also think when you start boiling down all the top issues, abortion is at the top of the list of generating a heated discussion but when coupled with taxes, health care and education it starts climbing down the rungs of importance in terms of what directly effects people's lives.

Trooper, unfortunately, it may have been intended as a joke, but it's still true. ;)

Hoosier Daddy said..."The Civil War affected everyone. There was hardly a person in the nation who was not directly affected by the war in terms of losing a relative, house, bodypart or property as a result. Not to sound completely heartless and crass, but abortion has no effect on my life whatsoever."

Except for that outmoded gasoline car you're still driving because the guy who would have invented a car that runs on water while at MIT five years ago was never born. Or consider the effect on the deficit caused by the artificial absence fifty million taxpayers - hell, we might even be able to afford all the entitlement spending we've so foolishly promised! Think of how differently Presidential elections might have turned out. I do take your point, that the Civil War produced tangible contact, while with Roe it's more a case of diffuse "what ifs," but I don't think it's accurate to state that abortion has had no effect on society.

I don't think it's accurate to state that abortion has had no effect on society.

Well that wasn't what I was implying. I meant it has no impact on me personally and to be honest, outside of the fetus and mother, really has no tangible impact other than perhaps an emotional one on anyone else. On a societal level yes, its much more difficult to assess the impact.

Again, while abortion does spur heated debate and the country is divided on the matter, it is not to the point of taking up arms and creating seperate countries over it. Your point about the potential loss of taxpayers and the person who cures cancer is well taken.

Kirby, what sort of thing are you looking for? Sort of like a biographical history of the Supreme Court's members? An old book that does something roughly like that for the pre-Warren courts, "The Supreme Court and its Great Justices" by Sidney H. Asch is pretty good if a little dry. It's the sort of project it'd have been nice for Rehnquist to have tackled next had he remained with us.